Fatal wounds for the death penalty

People tend to have hardened views about the death penalty. Me, I'm opposed to it and always have been. But I ask the indulgence of those of you who favor the death penalty to give this a read and see what you think.

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The death penalty costs a lot to implement, a side issue to be sure but in these tough fiscal times, a consideration. Florida, for instance, spends about $51 million a year on its death penalty system or about $24 million for each execution. While another broke state, California, spends an estimated $137 million. The high cost is largely driven by the layers of additional court proceedings intended to make sure that due process has been afforded the accused and a guilty person is being executed.

I can hear the cries of "who cares what it costs?" or "let's make it cheaper by cutting out all those extra legal steps." But what should concern capital punishment proponents is that the system, even with these expensive safeguards, gets it wrong. Executing the innocent is a distinct possibility.

Nine men in 2009 who had been convicted and sentenced to death were exonerated of their crimes and freed. The total now stands at 139 since 1973. According to the Death Penalty Information Center, those nine men served a combined 121 years between the time they were sentenced to death and their exonerations, which means that all that extra due process and all the system's delays that pandering politicians always caterwaul about were necessary to avert a tragedy.

And then there are the cases where a convict's innocence emerged too late. In a 2006 case concerning the death penalty law in Kansas, Supreme Court Justice Antonin Scalia wrote with his typical crowing arrogance that there has not been "a single case — not one — in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent's name would be shouted from the rooftops."

Scalia's misguided confidence is troubling considering the infamous Florida case of Frank Lee Smith whose death warrant was signed in 1989 for a rape and murder. It wasn't until after Smith died of cancer while awaiting execution that a DNA test in 2000 proved his innocence and implicated a convicted rapist and murderer.

And there is also Cameron Todd Willingham of Texas who was convicted of killing his three young daughters by arson and executed in 2004. Forensic experts who have reviewed the case, including one enlisted by the Texas Forensic Science Commission, say there is no scientific basis to conclude that the fire that swept through Willingham's home was arson. The original fire investigators, according to these later experts, had no comprehension of fire dynamics.

By all rights this should be the first case where a state formally exonerates a convict after putting him to death. Republican Gov. Rick Perry, a man in a pitched primary battle to win another term against Sen. Kay Bailey Hutchison, refused to grant Willingham a stay of execution even though Perry had before him new scientific evidence disputing the arson.

Perry has so little interest in doing what is right in this case that he's gone out of his way to hamper the work of the Texas Forensic Science Commission. Perry denies this. But after Perry replaced three members of the commission including its chair for no apparent reason the commission quickly put on hold further review of Willingham's case.

Another fairly recent action should jar death penalty supporters. The very group that laid out the modern framework for the implementation of capital punishment has now declared that the system is wholly unworkable and broken. In October the American Law Institute voted to repudiate the legal structure it had created in 1962 for death penalty cases as part of a Model Penal Code. According to the group, decades of experience tells us that there is no way to ensure "a minimally adequate system for administering capital punishment."

What we have now is not adequate while being extremely pricey. It is likely at least one innocent man has died and probably numbers more. This is why we should abolish the death penalty.